2012 QCCA 1191, 2012 QCCA 1191

Spitzer c. Magny 2012 QCCA 1191 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-022725-121 ( 750-17-001983-117 ) MINUTES OF THE HEARING DATE: June 22, 2012 THE HONOURABLE ALLAN R. HILTON, J.A. PETITIONERS ATTORNEY PETER SPITZER 2090182 ONTARIO INC. CORPEX COMPUTER INC. Mtre Karim Renno (ABSENT) IRVING MITCHELL KALICHMAN RESPONDENTS ATTORNEY JEAN MAGNY 9160-9867 QUÉBEC INC. DOMINIC VÉZINA 9179-3638 QUÉBEC INC. 9205-1697 QUÉBEC INC. COGISMAQ INTERNATIONAL INC. GROUPE CONSEIL COGISMAQ INC. Mtre Pierre Lévesque (ABSENT) CAIN LAMARRE CASGRAIN WELLS

MOTION FOR LEAVE TO APPEAL FROM A JUDGMENT RENDERED ON MAY 22, 2012, BY THE HONOURABLE MR. JUSTICE JEAN-GUY DUBOIS OF THE SUPERIOR COURT, DISTRICT OF SAINT- HYACINTHE Clerk: Annick Nguyen Court Room: —— HEARING Continuation of June 20, 2012, hearing. Counsel are advised that judgment will be rendered on the minutes of the hearing and that their presence in Court is not required. Judgment – See page 3.

Annick Nguyen Clerk JUDGMENT [ 1 ] The petitioners seek leave to appeal a judgment of the Superior Court that dismissed their application for a safeguard order in the context of an amended recourse relating principally to the respondents invocation of a shotgun clause in a unanimous shareholders agreement. They argue in the main that the circumstances giving rise to its exercise is not only oppressive but effectively determines one of the principal conclusions in their proceedings in a manner adverse to them.

Another argument, which at a minimum is plausible, is that the respondents have not exercised the shotgun clause in accordance with its terms. [ 2 ] In light of the potential impact of the judgment of the Superior Court on the ultimate outcome of the litigation, I believe this is an appropriate case to grant leave. I do so without expressing any opinion on the correctness of the judgment appealed from or the possible outcome of the appeal. [ 3 ] Given articles 29 and 511 C.C.P. ;

[ 4 ] Given that there should be case management of the appeal; [ 5 ] Given rules 48 and 49 of the Rules of the Court of Appeal in Civil Matters , which reads as follows: 48. Abandonment. Where the appellant’s arguments and documents standing in lieu of the factum are not served and filed within the established time limit, the appeal shall be deemed to be abandoned and

article 503.1 of the Code of Civil Procedure shall apply, mutatis mutandis . 49. Foreclosure. Where the respondent’s argument and, if applicable, documents standing in lieu of the factum are not served and filed within the established time limit, the respondent shall be foreclosed from filing and

article 505 of the Code of Civil Procedure apply, mutatis mutandis.

THEREFORE, THE UNDERSIGNED: [ 6 ] GRANTS leave to appeal; [ 7 ] ORDERS the continuation of proceedings in the Superior Court; [ 8 ] PLACES the case on the role of November 16, 2012, at 9:30 am, in court room Pierre-Basile-Mignault, for a hearing of 60 minutes ; [ 9 ] ORDERS the appellants, after having served a copy upon the respondents, to file in the office of the Court, no later than August 17, 2012 , four copies of a written argument not exceeding 10 pages , of the exhibits that would normally have made up schedules I, II and III of their factum and of their authorities; [ 10 ] ORDERS the respondents, after having served a copy upon the appellants, to file in the office of the Court, no later than October 5, 2102 , four copies of a written argument not exceeding 10 pages , of their supplementary documents and of their authorities; [ 11 ] ORDERS the parties to present their written arguments on 21.5 cm X 28 cm (8 ½ X 11 in.) paper, with line spacing of at least 1.5 lines (except in the case of quotations, which must be single-spaced and indented), and the computer-prepared text shall be in 12-point type, with no more than 12 characters per 2.5 cm, the use of the font ARIAL-12 being strongly recommended; [ 12 ] ORDERS that the documents filed by the parties carry a continuous pagination or tabs, a front cover and a general table of contents; [ 13 ] Costs to follow.

ALLAN R. HILTON, J.A.